Hi there... My name is Marcos Daniel Marado Torres, but I'm often known in the Internet by the handle of Mind Booster Noori.I was born in the Yule day of 1982 in Lamego - Portugal. I'm an Informatics Engineer since July of 2005.

25.5.06

The European Patent Office will be bound by proposed legislation that will exclude software from patentability, according to the EC, in a move that has startled opponents of software patents

Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.

The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.

"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."

The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.

"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"

Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.

"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.

"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.